Risk Issue Divides Jury

Press, Volume CVII, Issue 31539, 29 November 1967, Page 28

Risk Issue Divides Jury

(N Z Press Association) AUCKLAND, Nov. 28. A jury was unable to agree tonight whether a passenger claiming damages from the drunken driver of a car had voluntarily assumed the risk of injury. In the Supreme Court at Auckland, Francis Russell Poole, aged 23, a former naval rating now a sharemilker, had claimed $16,000 general and $1684 special damages from David John Stewart, a naval rating. Mr Justice Moller declined to enter judgment, extending to 28 days the time in which either party might move. The claim arose from an accident on the Rotorua-Whaka-tane road near Te Teko on August 7, 1965. The jury found that both Mr Stewart and Mr Poole had been negligent and that each was 50 per cent responsible for the accident It assessed general damages at $5500.

The issue on which it was unable to agree was: “Did the plaintiff Poole at all material times have full knowledge that considerable quantities of liquor had been consumed, or was likely to be consumed during the journey from Auckland to the place where the accident occurred, the consumption of which would result in Stewart not being in a fit condition to drive the car with safety, and did Poole in these circumstances freely and voluntarily agree to accept the risk involved so as to assert to a release of Stewart from liability?” The jury deliberated for more than six hours, and its foreman then told his Honour it was unanimous on all the other issues but could not reach even a 9-3 verdict on this one. Mr Justice Moller had earlier told the jury that a person who freely and voluntarily made an agreement with another, either expressly or by implication, to run the risk of injury caused by that person’s negligence could not recover damages. If the toaxim, "Volenti non

fit injuria,” applied It was a complete defence and plaintiff would receive nothing. There was marked judicial opinion on an aspect of the maxim arising out of the requirement that the person must be shown to have full knowledge of the nature and extent of the risk to be run. “Can he even be said to be able to have full knowledge of a risk which is going to arise in the future?” the judge asked. The Court of Appeal had touched on the topic in 1964, but had given no definite answer. “The cases may be rare in which it can be said that, by implication, the person has full knowledge and assents to run a risk in the future, but there can be circumstances from which the giving of such licence is permissible deduction from conduct,” the judge said. Opinion was also divided on another aspect of the subject. One school of thought said, the defence of volenti non fit injuria could never be successful against a person who drove with • drunken

driver, and another was that it all depended on the facts of the case. If he was wrong in his direction, Mr Justice Moller said, then he would give the Court of Appeal an opportunity to deal with the matter fully and directly. “The direction I give is that there is no hard-and-fast rule against the availability of the doctrine in a case where the plaintiff is a passenger in a car driven by a drunken driver,” he said. If the condition of the driver was in such a state that anything could happen, it would be possible to infer from the conduct of the passenger that he appreciated the risks and assented to run them to an extent which absolved the driver from any responsibility. The judge also directed that if the passenger was for any reason in a state where he could not acquire the knowledge of the driver’s alcoholic condition he was accepting, then the defence could not succeed against him.